Amanda Geiger

The applicant sought leave to issue a Certificate of Pending Litigation (CPL) to halt power of sale proceedings on her home.

She alleged that a mortgage registered against her property was obtained by fraud when an unidentified individual approached her at her home and induced her to sign documents while she was intoxicated and visually impaired.

The respondents argued that a mortgagor cannot obtain a CPL to stop a power of sale without offering to redeem the mortgage.

The court held that where fraud goes to the very formation and enforceability of the mortgage, the rigid rule requiring redemption does not apply.

Balancing the equities, the court granted the CPL to protect the applicant from potential homelessness pending a determination on the merits.

Following a successful urgent motion for leave to issue a Certificate of Pending Litigation, the applicants sought costs on a substantial indemnity basis, relying on offers to settle.

The court found that the offers to settle did not meet the timing requirements of Rule 49.10(1) and contained terms beyond the scope of the motion.

The court awarded the applicants costs on a partial indemnity basis, fixed at $5,000 inclusive of fees, disbursements, and taxes, payable within 30 days.

The applicants sought a Certificate of Pending Litigation (CPL) against a residential property after their Agreement of Purchase and Sale failed to close.

They claimed specific performance or, alternatively, damages.

The respondents denied breaching the agreement and opposed the CPL, having entered into a second agreement to sell the property.

The court granted the CPL, finding that the applicants had a triable claim to an interest in land and that the property was unique, making damages an unsatisfactory remedy, especially given the rising real estate market and the applicants' inability to use their deposit for another purchase.

The court also balanced the prejudice, noting the respondents' decision to enter a second agreement while the applicants' claim was active.